Federal Judge Virginia Hernandez Covington heard final arguments in the summary judgment hearing regarding Michelle Heinkel's request to distribute pro-life flyers to her friends announcing the annual Day of Remembrance. Miss Heinkel, who was in eighth grade at the time of the lawsuit, will soon enter the tenth grade. The argument was presented on her behalf by Mathew D. Staver, President and General Counsel for Liberty Counsel.

The annual Day of Remembrance occurs each April. The Day of Remembrance is a national day in which students come to school and remain silent in memory of the millions of unborn children that have lost their lives through abortion. As part of the Day of Remembrance, Michelle wanted to pass out pro-life literature. The Lee County school district policy requires that all literature distribution requests be submitted first to the superintendent, who will review the literature for content to determine whether to approve the request. Superintendent James Browder denied Michelle's request. During deposition, he testified that he has never allowed any student to distribute any literature because of the potential for disruption. He admitted that he does review the literature for content, that he might allow students to distribute literature, and that he has allowed an outside group to come on campus to distribute literature regarding athletics.

The prior review policy contains no time limit in which the superintendent must respond to a literature distribution request and has no objective standards to guide the superintendent's decision. The policy requires the superintendent to review the literature to determine if it is political, proselytizing, or religious. When asked the definition of religious literature, Superintendent Browder stated that it depends upon the person's religion. He stated that he bans Valentine cards and birthday cards, because they could be disruptive if one person got a card and another one didn't. During the hearing, school board attorney Thomas Gonzalez conceded that the policy as written was unconstitutional, but argued that the superintendent did the right thing by banning the literature because it was pro-life. He essentially argued that pro-life literature should be an exception to the First Amendment. Staver argued that the policy is unconstitutional because it requires prior review without objective standards and lacks a time limit, and that the policy is also unconstitutional because it restricts speech based upon the viewpoint of the speaker. Staver also argued that the policy is vague because of the lack of standards and definitions, and overbroad because it bans more speech than necessary to achieve any conceivable interest of the school district. A final decision is expected in thirty to forty-five days.

Staver commented on the case: "There is no constitutional difference between verbal and written speech except for litter. If you can say it, you can say it in print. Rather than banning all literature distribution, the remedy is to discipline the litterbug. Public school students have a right to free speech, which includes verbal or written speech, before, after or in between classes. A school's desire to squelch speech because of discomfort with the message is unconstitutional. Michelle Heinkel has a clear right to share the message of life and hope with her fellow classmates."